One of the things that happens with the Family and Medical Leave Act (FMLA) is a disconnect between the complex structure of the FMLA and its practical application. Plaintiffs’ attorneys will sometimes assert that they don’t understand how there could be an FMLA issue given that the structure is “so easy to understand.” That’s typically because plaintiffs’ attorneys don’t have to assess it in real time and are only dealing with issues and perceptions well after the events have occurred with a historical perspective as a guide.

In real time, assessing the FMLA can be extremely complicated, particularly if an employee is unwilling to cooperate in the ap­propriate process. That means clear, contemporaneous documentation is critical, as a recent appellate case demonstrates.

Michelle Brandt was a part-time employee with the city of Cedar Falls who was ultimately terminated in 2018. Beginning in 2016, she had a number of general leave and FMLA requests with increasing frequency. They included various issues such as TMJ (jaw issue), anxiety, depression, and ADHD. She also requested leave to care for a parent.

In 2016, Brandt spoke with multiple supervisors regarding why she was being passed over for a promotion to a full-time position and alleged that after those meetings, she began to be retaliated against. Written notices and meeting notes were documented by the employer.

Over time, Brandt was cited for various workplace issues and at one point indicated her medication may have caused mood changes and exacerbated performance problems, including “accounting errors, typos, and rude behavior.” Her medication list was provided to the city attorney, who determined the medications weren’t related to her performance problems. Brandt was eventually terminated in March 2018.

The court sided with the city before any trial. It ruled that Brandt’s damages were so nominal as to not be covered by the FMLA. It cited her prior arguments in which her legal counsel stated, “I don’t believe we are necessarily seeking monetary damages” and didn’t ask for any specific equitable relief. The court indicated that multiple other courts also determined “that nominal damages are not recover­ able because they are not included in the specific, statutorily prescribed damages under the FMLA.”

Brandt had also argued that the various disciplinary actions and warnings issued were a pretext (an excuse) for discrimination. The court noted that she failed to provide evidence of pretext and that her argument was “nothing more than disagreement with the statements contained in the disciplinary reports.” Additionally, in at least one circumstance, she admitted she had previously stated there were performance issues, pointing toward her medication management as part of the problem.

Brandt also argued that she had been discriminated against based on her age and disability. The court said the claims were untimely, noting that under the law, there is a 300-day statute of limitations for claims of this type and a significantly greater period of time had passed before she filed her claim.

The court further noted the employer offered “a legitimate nondiscriminatory reason for terminating Brandt – her documented history of deficient performance.” It also stated she “offer[ed] nothing more than disagreement with the statements contained in the disciplinary reports.”

Brandt also raised the continuing violation doctrine, which allows certain older proof elements or incidents to be brought in if there is a continuing issue and the incidents represent “an ongoing, unlawful employment practice.” The court found that the disciplinary notices that occurred within the appropriate time frame were related exclusively to her performance and were unrelated to age or disability and therefore couldn’t form the foundation of the continuing violation doctrine. Michelle Brandt v. City of Cedar Falls, et al., (8th Cir., No. 21-2537).

The appellate court relied heavily on the employer’s documentation regarding its efforts to discipline, train, and assist in improving Brandt’s performance. There were multiple written disciplinary notices, meetings, and on­ going conversations regarding specific performance is­ sues. Those documents formed the clear foundation for its defense and the dismissal of her claims.

Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines. You can reach her at joellen.whitney@dentons. com.